Response to House Ethics Committee from Lawyer of Adam Carroll

Former Liberal party staffer Adam Carroll responds, through his lawyer, to the House of Commons Standing Committee on Access to Information, Privacy and Ethics' request to have Carroll appear before it on the Vikileaks30 matter.

Former Liberal party staffer Adam Carroll responds, through his lawyer, to the House of Commons Standing Committee on Access to Information, Privacy and Ethics' request to have Carroll appear before it on the Vikileaks30 matter.

We would like to confirm that, as legal counsel for Mr Adam Carroll, we have received thesummons issued by the Standing Committee on Access to Information, Privacy and Ethicsfor our client to appear on Thursday, March 15, 2012. By this letter, I would like to advisethat Mr Carroll will

not

be attending the Committee proceedings on March 15, 2012. He isstill prepared to appear before the Committee by invitation, but, for the reasons discussedfurther below, we view the summons as unlawful, disrespectful and abusive.It is very disappointing that the Committee has chosen to proceed in this fashion. Asexplained in our previous communications, Mr Carroll did not refuse the invitation totestify. Accordingly, I fail to understand why the Committee would issue a summons to awitness who has not declined an invitation to appear. Again, my client is currently underdoctor’s orders to restrict his activities. He is consulting with his doctor today to determinehis fitness to appear and whether he can appear with some medical restrictions. Once Ireceive the letter from the doctor, I will share it with the Committee on the basis it will bereceived in confidence. As previously expressed, at that point I would like to confirm withyou and the Committee the timing and modality of my client’s appearance, to ensure it isconsistent with his medical restrictions.

It is our desire to facilitate Mr Carroll’s appearance before the Committee as soon asreasonably possible to bring this matter to a close and allow him to return to his private life.He is approaching this matter in good faith and is willing to appear before the Committeeby invitation. However, this appearance will be by invitation, not compulsion. For thereasons set out below, it is our position that the summons is beyond the jurisdiction of theCommittee and we decline to acknowledge it.

ETHI Committee has no jurisdiction to issue summons

The Committee’s jurisdiction to send for persons is, like all of its powers, limited by theCommittee’s mandate under the Standing Orders of the House or by any Order of Reference or instruction it may have received from the House. The Committee’s mandate isclearly set out in Standing Order 108(3)(

h

). It deals with specific matters that do not includethe use of House of Commons resources, the ostensible reason for calling my client totestify.I would like to draw Committee members' attention to certain passages in

House of Commons Procedure and Practice

, 2nd edition. At page 985, the text reads:

Like all other powers of standing committees

, the power to report is limited to issuesthat fall within their mandate or that have been specifically assigned to them by theHouse. Every report must identify the authority under which it is presented.

First, it is useful to bear in mind that committees are creatures of the House. Thismeans that they have no independent existence and are not permitted to take actionunless they have been authorized/empowered to do so by the House....committees are free to organize their proceedings as they see fit provided that their studies and the motions and reports they adopt comply with the orders of reference and instructions issued by the House

.And at page 879 of

Procedure and Practice

, we find the consequences of reporting to theHouse on a matter outside a committee’s mandate:

Committees are entitled to report to the House only with respect to matters withintheir mandate. When reporting to the House, committees must indicate the authority under which the study was done (i.e., the Standing Order or the order of reference). If the committee’s report has exceeded or has been outside its order of reference, theSpeaker has judged such a report, or the offending section, to be out of order

.Speakers of the House have ruled on numerous occasions that committees may not studyand report on matters falling outside their specific mandates.

It should be noted that theSpeaker’s rulings of March 14 and May 15, 2008 both dealt with reports from the Access toInformation, Privacy and Ethics Committee—reports which were ruled out of order becausethe Committee had not respected the mandate given it by the House.It is perhaps worthwhile to quote the Speaker’s words from some of these rulings:

While it is true that the House has given its committees broad mandates and significant powers, with such power and authority comes the responsibility of committees to respect their mandates and not exceed the limits of their authority

.(April 2, 2009)

Inherent in the power the House grants to its committees is the basic principle that each committee will respect its mandate. Implicit in the flexibility that committeeshave traditionally enjoyed is the understanding that they will be judicious in theexercise of their powers.

(March 14, 2008)

3

See, for example,

Hansard

for June 17, 2010; April 2, 2009; March 14, 2008; May 15, 2008; and June20, 1994